24:0917(88)NG - NLRBU and NLRB, Office of the General Counsel and the Board -- 1986 FLRAdec NG
[ v24 p917 ]
24:0917(88)NG
The decision of the Authority follows:
24 FLRA No. 88
NATIONAL LABOR RELATIONS
BOARD UNION
Union
and
NATIONAL LABOR RELATIONS BOARD
OFFICE OF THE GENERAL COUNSEL
AND THE BOARD
Agency
Case No. 0-NG-900
DECISION AND ORDER ON NEGOTIABILITY ISSUE
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and concerns the
negotiability of a single Union proposal. We find this proposal to be
negotiable.
II. Background
The Union in this case filed three unfair labor practice charges
against the Agency. In the first charge, filed concurrently with this
appeal, the Union alleged that management had bargained in bad faith
when it refused to negotiate over a proposal similar to the one under
review here. The second and third charges, filed subsequent to this
appeal, alleged that violations of section 7114(b)(4) of the Statute
occurred when the Agency refused to furnish the names and addresses of
employees in two units represented by the Union. In each instance, the
Union elected to have the dispute processed under unfair labor practice
procedures first.
In each case, the Authority's Regional Office declined to issue a
complaint. The first charge was dismissed by the Regional Director
because the dispute was not appropriate for processing under unfair
labor practice procedures. The second and third complaints were
dismissed by the Regional Director on the basis that the information
sought was readily available from other sources, and, therefore, the
Agency's refusal to provide home addresses did not violate the Statute.
After the refusals to issue complaints were sustained on appeals to the
General Counsel, the Union asked that we resume processing this
negotiability appeal.
III. Union Proposal
The Agency shall furnish the (Union) National President, the
Washington District Vice President, and the Washington Local
President, on an annual basis, a list of employees in the units to
include: name; mailing address; position title; grade; Agency
E.O.D.; and date of last promotion. The foregoing will be
prepared as of December 31 each year and delivered by the end of
February of each year.
A. Positions of the Parties
The Agency contends that disclosure of unit employees' home addresses
is prohibited by law, specifically the Privacy Act of 1974. The Agency
also points out that the Union has other "effective, expeditious ways"
of communicating with the employees it represents. In light of this
fact, the Agency contends that the "routine use" exception to the
Privacy Act is inapplicable to this dispute.
While acknowledging that out decision in Farmers Home Administration
Finance Office, St. Louis, Missouri, 19 FLRA No. 21 (1985) involved a
dispute nearly identical to the one in this case, the Union asserts that
"the Authority, upon reconsideration, will reverse itself." In asserting
this position, the Union contends that because employees actually have
little privacy interest in their home addresses the Authority
incorrectly denied the release of bargaining unit employees' names and
addresses to the Union.
B. Analysis and Conclusion
Both parties agree that the question before us in this case is
whether the release of bargaining unit employees' home addresses to the
Union is a negotiable matter. They also concede that our decision in
Farmers Home Administration governs the dispute here. In the original
decision in that case, it was held that the disclosure of employees'
names and home addresses was prohibited by the Privacy Act. /1/
The union in that case and the union in other cases in which the
Farmers Home Administration precedent was followed petitioned for court
review of the Authority's decisions. In the course of litigation on
appeal, it became apparent that the question of whether unions were
entitled to unit employees' names and home addresses under the routine
use exception of the Privacy Act, 5 U.S.C. Section 552a(b)(3), had not
been examined previously. Although that question had been raised before
the Authority, it had not been addressed in the Farmers Home
Administration decision. Consequently, remand was requested and granted
in that case and two others presenting the same issue.
In our decision on remand, Farmers Home Administration, Finance
Office, St. Louis, Missouri, 23 FLRA No. 101 (1986), we held that
release of bargaining unit employees' names and home addresses to the
union is not prohibited by law. In that decision we noted, among other
things, that the Office of Personnel Management has defined one routine
use of Federal employees' personnel records as disclosure of information
they contain to officials of a certified representative when relevant
and necessary to the union's representational responsibilities. Thus,
we found that disclosure of names and home addresses was within the
"routine use" exception to the Privacy Act. In reaching the conclusion
that release of the information was within the duty to bargain, we also
stated that "the mere existence of alternative means of communication is
insufficient to justify a refusal to release the information." /2/
In our decision on remand we found that the union's written request
for unit employees' names and home addresses did not have to be
supported by an explanation of the reasons for the request, as is
usually required by section 7114(b)(4) of the Statute. In making that
finding we stated, at page 8 of the decision:
In our view, an exclusive representative's need for the names and
home addresses of the bargaining unit employees it is required to
represent is so apparent and essentially related to the nature of
exclusive representation itself, that unlike requests for certain
types of other information, an agency's duty to supply names and
home addresses information does not depend upon any separate
explanation by the union of its reasons for seeking the
information.
Thus, we concluded that the release of names and home addresses of
bargaining unit employees to the union is not prohibited by law, is
necessary for the union to fulfill its duties under the Statute and
meets the other requirements of section 7114(b)(4).
Based on our decision on remand in Farmers Home Administration, the
disclosure of the type of information sought by the Union in this case
is not barred by law and is, in fact, essentially related to a union's
ongoing representational responsibilities. Consequently, the proposal
in this case which also seeks release of unit employees' home addresses
is negotiable. See also National Federation of Federal Employees, Local
1655 and Adjutant General of Illinois, 24 FLRA No. 1 (1986).
We also note that while section 7114(b)(4) obligates an agency to
furnish an exclusive representative with information, to the extent not
prohibited by law, necessary for the bargaining process, no provision of
the Statute precludes the parties from negotiating contractual
provisions requiring release of information which is otherwise not
unlawful. See National Treasury Employees Union and Department of
Energy, 22 FLRA No. 12 (1986).
IV. Order
The Agency must upon request (or as otherwise agreed to by the
parties) bargain concerning the disputed Union Proposal. /3/
Issued, Washington, D.C. December 30, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
--------------- FOOTNOTES$ ---------------
(1) Privacy Act of 1974, 5 U.S.C. Section 552a (1982).
(2) Farmers Home Administration Finance Office, St. Louis, Missouri,
Decision and Order on Remand, 23 FLRA No. 101 (1986), slip op. at 9.
(3) In finding the disputed proposal to be within the duty to
bargain, we make no judgment on its merits.